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[U] Ives v. Ives

Superior Court of Pennsylvania

December 30, 2013

ARTHUR L. IVES, Appellant
v.
KATHRYN E. IVES, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order of November 5, 2012, in the Court of Common Pleas of Warren County, Civil Division at No. A.D. 355 OF 2010

BEFORE: FORD ELLIOTT, P.J.E., ALLEN and COLVILLE [*] , JJ.

MEMORANDUM

COLVILLE, J.

Husband appeals from a divorce decree dated November 5, 2012. We dismiss the appeal.

The relevant facts are as follows. Husband initiated this action on January 12, 2010, by filing a complaint raising counts of divorce and equitable distribution. Wife filed an answer to the complaint and counterclaim for equitable distribution, alimony, alimony pendente lite, counsel fees, costs and expenses. Husband and Wife both filed affidavits of consent and waivers of notice of intention to request entry of a divorce decree under the Divorce Code, 23 Pa.C.S.A. § 3301(c). An equitable distribution hearing was held before a hearing officer. Following the hearing, the hearing officer filed an equitable distribution report and recommended order. Husband filed exceptions to the hearing officer's report and recommended order. Thereafter, Wife filed exceptions to same. Following argument on the parties' exceptions, the trial court issued an opinion and order of September 28, 2012, overruling, in part, and sustaining, in part, the parties' exceptions.

Thereafter, Wife filed a praecipe to transmit the record for entry of a divorce decree. Husband filed a petition to vacate, arguing, inter alia, that he was prevented from appealing the September 28, 2012, equitable distribution opinion and order as no divorce decree had been entered. On November 5, 2012, the court entered a divorce decree. Argument on Husband's petition to vacate occurred on November 28, 2012. On December 4, 2012, Husband appealed the November 5, 2012, divorce decree. On the same date, the court entered its findings and decree in divorce in which the court, inter alia, denied Husband's petition to vacate and amended the divorce decree to incorporate the September 28, 2012, equitable distribution opinion and order. Husband did not appeal the December 4, 2012, amended divorce decree.[1]

Husband appealed only the November 5, 2012, divorce decree, in which the court ordered divorce of the parties, but retained jurisdiction of any claims for which a final order had not yet been entered. Husband's claims on appeal challenge the court's equitable distribution opinion and order; Husband does not challenge the grounds for entry of divorce. Although the trial court subsequently amended the November 5, 2012, decree to incorporate the terms of the equitable distribution opinion and order, rendering said opinion and order final and reviewable, Husband did not appeal the amended divorce decree. Thus, Husband's appellate claims are not reviewable on an appeal from the November 5, 2012, decree. Accordingly, we dismiss the appeal.

Appeal dismissed.

President Judge Emeritus Ford Elliott files a Dissenting Statement.

Judgment Entered.

DISSENTING STATEMENT

FORD ELLIOTT, P.J.E.:

I respectfully dissent from the majority's decision to dismiss Husband's appeal. The trial court issued a divorce decree on November 5, 2012 without incorporating its September 28, 2012 order addressing the parties' exceptions. Ironically, the final order from which this appeal lies was the November 5th order regardless of whether the September 28th order was incorporated. See Colagioia v. Colagioia, 523 A.2d 1158, 1160 (Pa.Super. 1987) (an equitable distribution order is not final and appealable until a divorce decree is entered). Husband next filed a motion to vacate the court's September 28, 2012 order. Wife subsequently filed a motion to amend the divorce decree. Argument was heard in late November 2012 at which time the trial court voiced its intention to correct the defect in the divorce decree.

On December 4, 2012, Husband filed his notice of appeal. On that same date, the trial court issued an amended divorce decree incorporating its September 28, 2012 order and denying Husband's petition to vacate. Wife filed a notice of appeal to the December 4, 2012 decree on January 3, 2012. Wife's appeal is docketed at No. 134 WDA 2013.

We note that 42 Pa.C.S.A. § 5505 establishes a 30-day time limit for a trial court to modify or rescind any final order. As shown by the above procedural history, the trial court acted within the 30-day time frame to correct its mistake in the divorce decree. We reiterate the mistake was the trial court's failure to incorporate the September 28, 2012 opinion and order into the divorce decree.[1] Husband's appeal concerns the exceptions that were addressed in the September 28, 2012 order and accompanying opinion.

Based on the preceding, I do not agree with the majority that Husband should be required to take a new appeal from the December 4, 2012 decree. Husband timely appealed the November 5, 2012 divorce decree which the trial court later corrected on December 4th. In the interest of fairness, Husband's appeal should not be dismissed. Cf. Johnston the Florist, Inc. v. TEDCO Construction Co., 657 A.2d 511, 513 (Pa.Super. 1995) (Judgment was entered after appellant filed his notice of appeal. Since the entry of final judgment was done during the pendency of the appeal, it is sufficient to perfect our jurisdiction).


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